The Court of Appeal on wind turbines and heritage assets

The Court of Appeal has rejected an appeal over the quashing of a planning inspector’s decision in relation to wind turbines. Morag Ellis QC explains why it is an important ruling.

Judgment was handed down by the Court of Appeal this week in Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council & Ors [2014] EWCA Civ 137, upholding Lang J in the Administrative Court who decided that an inspector's decision should be quashed. Sullivan LJ gave the judgment of the Court, with which Kay and Rafferty LJJ agreed.

Following an inquiry, an inspector allowed Barnwell's appeal and granted permission for four wind turbines in the settings of more than 40 designated heritage assets, the most important of which were an outstanding collection of Grade 1 buildings and gardens known as Lyveden New Bield. The property is owned by the National Trust and was built by Sir Thomas Tresham as a symbol of his Roman Catholic faith in an era of persecution.

The inspector, applying PPS5 policy now contained in the National Planning Policy Framework, found that harm to settings would be less than significant. In reaching this conclusion, he placed great weight on his conclusion that observers would be able to understand that the wind farm differed in form and function from the heritage assets in question.

His findings of less than significant harm were carried forward into his balancing exercise, which he carried out by reference to policy about the general acceptability of renewable energy projects rather than s.66 Listed Building and Conservation Areas Act 1990.

Having stated that he could reach no conclusion on the evidence as to whether or not Lyveden New Bield had been designed with views towards the windfarm, he went on to conclude that turbines would not intrude upon any obviously planned views, another reason for finding that harm would be less than significant.

The challenge was made on the following three grounds.

The inspector's balancing exercise was defective because instead of having regard to the desirability of preserving or enhancing the settings of listed buildings, he had instead considered harm by reference to general renewable energy policy, apparently because he had decided that harm would be less than significant. Lang J and the Court of Appeal held that the inspector had erred in not affording significant weight to the failure to preserve or enhance, as required by S.66. Tesco Stores v. Secretary of State was distinguished on the basis of the specific listed building statutory duty to which s.70 of the Town and Country Planning Act is subject. In this instance, therefore, weight was not the exclusive province of the decision maker. Sullivan LJ said: "It does not follow that if the harm to such heritage assets is found to be less than substantial, the balancing exercise referred to in policies HE9.4 and HE 10.1 should ignore the overarching statutory duty imposed by section 66(1), which properly understood (see Bath, South Somerset and Heatherington) requires considerable weight to be given by decision-makers to the desirability of preserving the setting of all listed buildings, including Grade II listed buildings."

The inspector's assessment was partial and flawed because by focussing upon the observer's ability to understand the respective functions of heritage assets and turbines, he had left out of consideration factors which were highly material to the concept of setting as set out in national policy and English Heritage guidance. In the case of Lyveden New Bield, these omissions were compounded by the confused reasoning concerning designed views, a principal controversial issue.

Sullivan LJ said: "As the Practice Guide makes clear, the ability of the public to appreciate a heritage asset is one, but by no means the only, factor to be considered when assessing the contribution that setting makes to the significance of a heritage asset. The contribution that setting makes does not depend on there being an ability to access or experience the setting."

He continued: "Matters of planning judgment are, of course, for the Inspector. No one would quarrel with his conclusion that ‘any reasonable observer’ would understand the differing functions of a wind turbine and a church and a country house or a settlement [30]; would not be confused about the origins or purpose of a settlement and a church and a wind turbine array [36]; and would know that a wind turbine array was a modern addition to the landscape [50]; but no matter how non-prescriptive the approach to the policy guidance in PPS5 and the Practice Guide, that guidance nowhere suggests that the question whether the harm to the setting of a designated heritage asset is substantial can be answered simply by applying the ‘reasonable observer’ test adopted by the Inspector in this decision."

Of the inspector's reasons, Sullivan LJ said that he found it difficult to understand how the 'reasonable observer' test could rationally justify a conclusion that harm would be less than significant in the context of viewing mounts and other features of the New Bield and its internationally significant garden. 

The decision is important because the policies under discussion have been carried forward into the NPPF and it provides a reminder that the graduated policy tests there set out do not override statutory heritage duties.

It also clarifies the relationship between the general Tesco principle that weight is a matter for the decision maker and the statutory weighting or presumption which applies in respect of listed buildings and in the closely related provisions concerning conservation areas. It builds upon the Supreme Court approach to interpretation of policy in Tesco v Dundee.

Lovers of heritage will welcome the common sense approach of Sullivan LJ to the assessment of setting and harm which has kicked into touch an argument which, taken to extremes, would have rewarded insensitivity in design rather than the contextual approach generally favoured in guidance. 

Morag Ellis QC is a barrister at Francis Taylor Building. She was instructed by Sharpe Pritchard and represented the First, Second and Third Respondents in the Barnwell Manor case.